3 Section I. Organization Forms for Bidding and Their Definitions Organizations Forms of Bidding Procurement in China: the Self-bidding and the Agent bidding. the Self-bidding refers to the employer who is capable of preparing the bidding documents and organizing the bid evaluation, can carry out the bidding procedure by itself after approved by or registered with the relevant authorities. the Agent bidding refers to the employer entrusts a tendering agent to organize a series of bidding & tendering activities so as to select a desirable winner among all bidders. Tendering Agent: is an agent that is established by law to devote itself to bidding agency business and provide the related services in order to find the satisfactory seller for the buyer based on its advantages in profession and information. 3

4 Section II. Theoretical Basis for Tendering Agent Asymmetric Information In the market economic context, there are the asymmetric information and incomplete relation of covenant between the buyer and the seller, in the strict economic sense, the buyer and the seller have a consignor-agent relationship each other. Information Collection Cost. The theory of information economics tells us that the scientific decision is made on the basis of a lot of information collected and analyzed. However, the information is collected at some costs, which is called the information collection cost. Due to the existence of such cost, persons acquire the information by different means according to its target and strength, which causes the uneven information distribution among different groups, and such unevenness is more remarkable in particular among different industries and departments, and such information asymmetry mainly reflects in the transactions on that each party is lack of some needed information. In reality, the information asymmetry is ubiquitous and unavoidable. 4

5 Section II. Theoretical Basis for Tendering Agent Adverse selection the parties, to obtain more benefits, may have corruption or demoralization behaviors in the transaction, which results in negative influence on the market. Provided one party is able to benefit from its application of more information and lead the loss to the other in the transaction, the party with inferior information will be hard to make decision on the transaction, and then the price will be distorted and lose its functions of balancing the supply and demand relation and promoting the transaction accomplishment, and thus reducing the market efficiency. Failure to establish an effective mechanism to crack down the false products will cause the rampant run of such products, and even cause the market paralysis. Bidding procurement executed by tendering agents provides a set of effective mechanism that is capable to prevent the adverse selection market from arising. 5

6 Section III. Development of Tendering Agents in China 1. Tendering agent is a Product of Socialized Division of Labors & Trades in Market Economic Context and is Required by Optimum Allocation of Social Resources In 1980, a university project that China launched with the support of loans from the World Bank for the first time is also the first project that employed an tendering agent to invite bids in international scope. Due to the institutes, enterprises and companies lack of knowledge and information on the bidding procurement, as well as the experts and competencies, the agent specializing in tendering arouse to meet the demand of those units. Law of the People s Republic of China on Tenders and Bids, which is a basic law to standardize the activities of bidding procurement. 6

7 Section III. Development of Tendering Agents in China 2. Tendering agent is a Consultancy Organization acknowledged by World Bank and Asian Development Bank In 1984, the first tendering company in China was established. Four earliest companies in China approved by the former Ministry of Foreign Trade and Economic Cooperation, P.R.C. the Ministry of Finance, P.R.C and the People s Bank of China, as well as the World Bank and the Asian Development Bank (ADB) to have the qualification of international bidding procurement. It is stipulated by China s relevant laws and regulations that the bidding procurement for projects supported with the loans from the international financial organizations or from the foreign government shall be consigned to the tendering agent to do so. It is also specified in the procurement guidelines of the World Bank and ADB that the Employer may select and employ a tendering agent and such employment could be involved in the procurement plan, and the corresponding costs and expenses can be borne by the WB and ADB. The tendering agents have accumulated rich experience and are able to accurately meet the project requirements in depth, such as project design, project audit and technical assistance etc. 7

8 Section III. Development of Tendering Agents in China 3. China has made requirements for the tendering agent in market accession, qualification, staff, competence, supervision and other areas Law of the People s Republic of China on Tenders and Bids, the tendering agent shall meet the following conditions: It shall have the business place and related capital to accomplish the bidding procurement operation; It shall have the competence to prepare the bidding documents and organize the bid evaluation, as well as have a required number of professional staff who has the qualification of cost estimate, bidding, and the title of medium technician or above level; It shall have the expert group, each member of which will be legally, technologically and economically qualified to be the member of the Bid Evaluation Committee. As a service organization, the tendering agent shall not be subordinate to the administrative authority or other governmental department, nor can it provide consultancy or service to the bidders. 8

9 Section III. Development of Tendering Agents in China China has categorizes the tendering agencies into three levels of Level A, Level B and Level B-2 (temporarily) for projects invested by the Central Government, engineering construction projects, importing electrical & mechanical products, and the government procurement projects. As is established by law, the tendering agent shall be supervised by: administrative departments subordinated to the State Council and by the local government, which is called the administrative supervision; by the judicial organs (judicial supervision) ; the Employer and the bidders who, as the parties participate in the tendering activities, shall be entitled to make supervision; the public, the society and the media who, acting as the third party, also have the right to supervise the tendering agent. 9

11 Section IV Advantages of Tendering agent Informationization 1. Minimize Information Asymmetry and Promote Market Development Take the engineering project as an example, the contractor s information advantages include the advantages obtained before and after the contract signing, the former exists before signing the contract, and the contractor has more information than the owner in project construction experience, technological strength, managerial competence and its real resources, etc. while the latter occurs after signing the contract, and the contractor has more information than the owner in the project schedule, construction quality, accomplishment or variation of technological parameters, as well as the predicted completion time and the gains in the future. As the contractor has the information advantages, the owner has to overcome two difficulties, the first is how to select the appropriate contractor in a rapid and effective way, that is, in the condition that the real capacity of the contractor cannot be assessed, by what kind of mechanism that the owner selects the most competent contractor to build the project; the second is the stimulation made to the contractor after signing the contract, i.e., how to encourage the contractor to work hard without jerry-building in the case that it is difficult to measure the contractor s efforts. The Agent Bidding provides a high performance and quality scheme to solve the above mentioned problems. Comparing with the owner who focuses on its own benefit while ignores or avoids procurements rules and guideline stated in the national administrative agency and foreign Loan organizations, and even impairs the benefit of the bidders in the one-time deal, the tendering agent has the self-evident advantages in the expertise and consistency of the tendering organization, exact and diversified information channels, accurate understanding of policies, familiarity with the process, as well as the smooth communication with the lenders, the competent state authorities, the owner and the bidders, etc. 11

12 Section IV Advantages of Tendering agent Informationization 2. Tendering Agent has complete information advantages Advantages in a wide range of resources, including the suppliers, experts, public relations resources and information from national and local government departments and technical support unit. Price information, domestic and foreign suppliers information, equipment and materials price information; Familiar with the relevant market, and to grasp the direction of development of advanced equipment and technology. Real-time updates of the latest changes in state laws and regulations, learn about the latest bidding policy developments. Supplier evaluation system, dynamically tracking and managing the supplier's technical force, the qualification and credibility. Experts Database in various professional fields of civil engineering, equipment and services. The tendering agent maintain a sound communication relationship with design institute and consultant institute, and can be the first to grasp the technical trends in face of technical difficulties and high complexity of the project. 12

13 3. Reduce Legal Risks Section IV Advantages of Tendering Agent Legitimization & Compliance China started to introduce the bidding procurement system in the engineering construction area since 1980s. On January 1, 2000, the Law of the People s Republic of China on tenders and Bids was put in implementation, which signifies that China has officially established the laws and regulations for bidding procurement operation. The behaviors of both the buyer and the seller are limited and protected by law during the bidding procurement activities. Any behavior that infringes the legal requirements will be punished. The above-mentioned law and system has played a significant role in promoting the market competition, standardizing market behavior and preventing the corruption and fraud since they war established. Thanks to years operations of bidding, the tendering agent has the remarkable advantages over the owner in the extent to which it is familiar with the relevant laws and regulations and in the competence of applying those laws and regulations, therefore, it can better meet the requirements as specified by laws and regulations, ensures the bidding procurement activities are in compliance with the laws and regulations. Therefore, the agent not only helps the owner to evade the legal risks, but also safeguards the legal rights and interests of the owner and the bidder, and makes the bidding procurement activities be more fair and just. The owner is easy to focus on its own benefit and impair the benefits of the bidders, evade or ignore intentionally or non-intentionally the requirements as specified by the laws and regulations during its independent tendering process, in which, not only the quality and effect of competitive biddings cannot be safeguarded, but also the owner will face a huge risks caused by the infringing the laws and regulations in case the competent authority makes inspection over such activities after the bidder falls in question on the qualification of the owner and makes complaints. 13

14 Section IV Advantages of Tendering agent Professional 4. Tendering agent is Professional The tendering system has been widely used in all trades and areas of the national economy in China. In addition, there are different procurement projects in China according to the loan sources, including the loan from the World Bank, from ADB, from the government of other countries and from Chinese governments, etc. As different procurement projects have different subjects and capital sources and trade practices, those projects have different requirements either in the procurement process and regulations, or in terms of economy and technology. The tendering agent has accumulated rich experience and unparalleled advantages in fully and effectively collecting and analyzing market information, appropriately sub-contracting, preparing the complete and workable bidding documents, organizing the activities of bid opening and evaluation, etc. In particular, the tendering agent plays a significant role in the projects of international multi-lateral funds and bi-lateral funds that must be strictly in compliance with the policies as those funds involve in the loans of international financial organizations or the government of other countries. Thanks to the long-term work at the frontier, the staff of tendering agent has accumulated rich experience of bidding procurement, are very familiar with the procurement process and regulations. Their experience and professional advantages can help the Employer to get twofold results with half the effort. As the tendering is a kind of procurement implementation in strict compliance with the law, it must conform to not only the provisions as specified by Chinese laws but also the different regulations and rules formulated by different authorities in different trades. The tendering agent has the legal experts who is familiar with the tendering activity and can provide the professional legal consultancy, which ensures the tendering activity to be in compliance with the provisions of laws and regulations. 14

15 Section IV Advantages of Tendering agent Highefficiency 5. Spread advanced managerial concepts and system for Employer The managerial experience of bidding procurement projects in China is originated from the introduced loan projects from the World Bank and ADB. Both the banks have a complete set of scientific process for project assessment, approval, negotiation with the borrower, conclusion of loan agreement, project implementation, tendering & bidding, and issuance of loans, supervision and inspection over the use of loans, acceptance inspection of project and post-project assessment, etc. The tendering agent is the first ones who learn, accept and spread the internationally advanced managerial experience and system, and then the agent passes the advanced project management experience of the World Bank and ADB to the Employer via the consultancy service. By referring to the advanced managerial concepts and system, China has worked out a set of effective management system with Chinese characteristics during years practice of bidding procurement, and such system covers the diversified specialties including trade, engineering cost and project management, etc. Therefore, management introduced by tendering agent to Employer is high-quality, highefficiency and low- cost. 15

16 Section V Misunderstanding for Agent Bidding 1. Increase the procurement cost ; 2. Agent bidding may not reach the same obvious effect as Self-bidding; 3. Employer will lose the decision-making power and be out of control over the project ; 4. Tendering agent will reduce the privacy of procurement process. 16

17 Section V Misunderstanding for Agent Bidding 1. Increase the procurement cost The cost paid to the agent in the Agent Bidding process is limited, and the upper threshold of the cost is strictly specified by the state laws in China. In the context of market competition, the tendering agent, while collecting the agent service fee, not only offers preferential measures, but also actively undertakes many other fees arising in the tendering and procurement processes, such as expenses of compiling bidding documents, paying to experts for bids evaluation, conference fee, traffic and liaison expenses, etc. Those fees will also arise during the process of Self-bidding. It is worth to mention that Employer and the tendering agent who reach an agreement will have the common benefit and preference, and the latter will, by using its advantages, try its best to take the actions that are in compliance with the benefit of the Employer in accordance with the preference of the former, so as to promote competition in the procurement transaction and reduce the quotation of bidders in the end. The funds saved in the process will be much more than the commission service fee. 17

18 Section V Misunderstanding for Agent Bidding 2. Agent Bidding has a poorer control effect of the procurement project than the Independent Bidding Agent Bidding system is the product of socialized division of labors and trades in the conditions of market economy, and such division will enhance the efficiencies of the employer and the tendering agent in procurement process. The tendering is a high professional activity that involves the integrated application of technology, economy and law, etc. It has not only the strict procedure but also professional skills, which requires the party who undertakes the tendering work to have abundant knowledge and skills in many fields. Tendering agent possesses the strongly professional competence and rich experience of project management, which are the shortcomings of the employer. How to well utilize these features to solve the problem of information asymmetry between the buyer and the seller is the key to realize the bidding effect, i.e., reduce cost and promote the efficiency of the project. To maximize the profit, the marginal investment and yield will reach an equilibrium point when the enterprise or organization develops into a certain scale. The tendering team that undertakes charge of the time-consumed, heavily-loaded and high-risk procurement activity, if temporarily established by the enterprise for Self-bidding, will constrain the work efficiency of the staff, and the equilibrium point will be broken and the yield of the enterprise will be gotten deceased gradually. 18

19 Section V Misunderstanding for Agent Bidding 3. Employer will lose the decision-making power and be out of control over the project The employer worries about that it will lose right of decision making and the control over the project after it assigns the bidding to an agent. The tendering agent conducts the bidding activities on behalf of the employer and solves relevant affairs within the range authorized by the latter. The employer and the agent have the entrusting relation in between in terms of law, and the power of agent is the basis for the former to engage in the agent tendering activities. The power of agent is confined to the operation scope within which the agent takes the bidding activities in the name of the principal. The employer is still entitled fully with the right of decision making and can use such right in more effective manner after it entrusts the agent to engage in the bidding, the agent action is not in conflict with the right of decision-making. After entrusted, the agent will focus its major work on organizing the bidding process by fully utilizing the competition mechanism in the bidding procurement process, so as to transfer the market controlled by the seller to another market by the buyer, and create the situation of competition among bidders, so that the contractor with powerful construction technology strength, advanced machinery and good reputation will be successfully selected by the employer. The entire process of the bidding will be participated in and supervised by the employer. As long as the employer are abided by the relevant laws and regulations and have a all-around awareness with the bidding, it will be entitled with the right of final decision making at all the time. 19

20 Section V Misunderstanding for Agent Bidding 4. Tendering agent will reduce the privacy of procurement process a) Ensures the privacy of the procurement process from the prospect of legislation. The confidentiality obligations and legal responsibilities of parties participating in the bidding procurement have been expressly stipulated in the Article 50 of the Law of the People s Republic of China on Tenders and Bids; b) The confidentiality clauses will be stipulated under the agent bidding agreement, which determines the confidentiality obligations of the agent. any party who breaches the confidentiality clause under the agreement has to make economic compensation and assume the legal obligations; and c) Compliance with the confidentiality principle must be the basic occupation ethics of the tendering agent and its staff. 20

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